| People v King |
| 2017 NY Slip Op 04618 [151 AD3d 1651] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Michael A.King, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedMarch 27, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted sexualabuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]).Contrary to defendant's contention, his waiver of the right to appeal is valid (see generally People v Lopez, 6 NY3d248, 256 [2006]; People vDaigler, 148 AD3d 1685, 1686 [2017]). Defendant waived that right "both orally and inwriting before pleading guilty, and [County Court] conducted an adequate colloquy to ensure thatthe waiver of the right to appeal was a knowing and voluntary choice" (People v McGrew, 118 AD3d1490, 1490-1491 [2014], lv denied 23 NY3d 1065 [2014] [internal quotation marksomitted]; see People v Weatherbee,147 AD3d 1526, 1526 [2017]). Moreover, the record establishes that defendant "understoodthat the right to appeal is separate and distinct from those rights automatically forfeited upon aplea of guilty" (Lopez, 6 NY3d at 256; see People v Nicometo, 137 AD3d 1619, 1619-1620 [2016]).Although the colloquy and the written waiver contain improperly overbroad language regardingthe scope of the rights waived by defendant (see generally People v Callahan, 80 NY2d273, 285 [1992]; People v Seaberg, 74 NY2d 1, 9 [1989]), "[a]ny nonwaivable issuespurportedly encompassed by the waiver are excluded from the scope of the waiver [and] theremainder of the waiver is valid and enforceable" (Weatherbee, 147 AD3d at 1526[internal quotation marks omitted]; seePeople v Henion, 110 AD3d 1349, 1350 [2013], lv denied 22 NY3d 1088[2014]; People v Pelaez, 100 AD3d803, 804 [2012], lv denied 21 NY3d 945 [2013]). Furthermore, although a waiver ofthe right to appeal does not foreclose review of a court's failure to consider treatment as ayouthful offender, defendant's "valid waiver of the right to appeal . . . foreclosesappellate review of [the] sentencing court's discretionary decision to deny youthful offenderstatus" to defendant inasmuch as the court considered such status before imposing a sentence (People v Pacherille, 25 NY3d1021, 1024 [2015]).
Defendant also challenges the lawfulness of certain conditions of probation that wereimposed by the court at sentencing. Defendant's challenges are not precluded by his waiver of theright to appeal inasmuch as they implicate the legality of the sentence, i.e., the court's authority toimpose the conditions, and it is well settled that "even a valid waiver of the right to appeal willnot bar . . . challenge[s] to an illegal sentence" (People v Fishel, 128 AD3d 15, 17 [2015]; see Lopez, 6NY3d at 255; Callahan, 80 NY2d at 280). Moreover, while the People contend thatdefendant's challenges are not preserved for our review because defendant failed to object to theprobation conditions at sentencing, there is a "narrow exception to [the] preservation rulepermitting appellate review when a sentence's illegality is readily discernible from the trialrecord" (People v Santiago, 22NY3d 900, 903 [2013]; see Peoplev Nieves, 2 NY3d 310, 315 [2004]; People v Samms, 95 NY2d 52, 56 [2000])."The Court of Appeals has recognized that this 'illegal sentence' exception encompasses adefendant's claims that a probation condition is unlawful because it is not reasonably related torehabilitation or is outside the authority of the court to impose" (Fishel, 128 AD3d at17-18; see People v Letterlough, 86 NY2d 259, 263 n 1 [1995]; see also Samms,95 NY2d at 56; see generally People v Fuller, 57 NY2d 152, 156 [1982]). We thusconclude that the narrow exception to the preservation rule applies to defendant's challenges tothe probation conditions to the extent that they implicate the legality of his sentence and that anyillegality is evident on the face of the record (see Fishel, 128 AD3d at 18; see alsoSamms, 95 NY2d at 56).
With respect to the merits, however, we reject defendant's contention that the condition thathe sign a consent to waive his Fourth Amendment right protecting him from searches of hisperson, home, and personal property was unlawfully imposed by the sentencing court. Indeed,that condition was properly "circumscribed to specified types of searches by probation officersacting within the scope of their supervisory duty and in the context of the probationary goal ofrehabilitation" (People v Hale, 93 NY2d 454, 460 [1999]). Unlike the defendant in People v Mead (133 AD3d 1257,1258 [2015]), the 16-year-old defendant in this case had a history of drug and alcohol abusebeginning at a young age that resulted in, among other things, a referral to a treatment programfrom which defendant was unsuccessfully discharged. Additionally, the 10-year-old victim ofdefendant's sexual abuse reported that defendant had exposed her to marihuana. We thusconclude that the consent-to-search condition is tailored to suit defendant and reasonably relatedto his rehabilitation (see Penal Law § 65.10 [2] [l]; Hale, 93 NY2dat 461). The condition is also "reasonably necessary to insure that the defendant will lead alaw-abiding life" (§ 65.10 [1]), and is necessary to prevent his future incarceration(see § 65.10 [5]). For the same reasons, defendant's challenge to theprobation condition requiring that he abstain from the use or possession of alcoholic beverages iswithout merit.
Contrary to defendant's further contention, the probation condition prohibiting him fromusing the internet to access any commercial social networking website is one of the mandatoryconditions expressly required by statute where, as here, the court imposes a sentence of probationfor an offense requiring registration as a sex offender and the victim was under 18 years old atthe time of the offense (see Penal Law § 65.10 [4-a] [b]).
We reject defendant's challenge to the probation condition prohibiting him from possessing"a cellular phone with photograph/video capabilities." In light of defendant's sexual abuse of a10-year-old victim, along with the evidence that defendant had exposed the victim topornographic video and magazine images and the fact that a cellular phone with a camera isreadily capable of being used to create such images of oneself or others and distribute them toother persons, we conclude that the subject prohibition relates to defendant's rehabilitation,would assist in preventing his incarceration, and is, in general, reasonably necessary to assistdefendant in leading a law-abiding life (see Penal Law § 65.10 [1], [2] [l];[5]).
Contrary to defendant's further contention, inasmuch as there is evidence in the record that heshowed the victim pornographic images, the probation conditions prohibiting his possession ofpornographic or sexually stimulating materials were properly " 'tailored in relation to theoffense[ ], and were reasonably related to defendant's rehabilitation' " (People v Franco, 69 AD3d 981,983 [2010], quoting Hale, 93 NY2d at 462; see generally People v Wheeler, 99 AD3d 1168, 1170 [2012], lvdenied 20 NY3d 989 [2012]).
Defendant's contention that the pornography-related probation conditions areunconstitutional is not preserved for our review inasmuch as he failed to object to thoseconditions at sentencing, and thus "the sentencing court was never given an opportunity toaddress any of the constitutional challenges that defendant now lodges with this Court" (People v Pena, 28 NY3d 727, 730[2017]; see CPL 470.05 [2]). Moreover, the narrow exception to the preservation rule isnot applicable here (see Pena, 28 NY3d at 730). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice (see CPL470.15 [3] [c]; People v Rawson,125 AD3d 1323, 1324 [2015], lv denied 26 NY3d 934 [2015]; People v Riley, 9 AD3d 902, 903[2004], lv denied 3 NY3d 741 [2004]). Present—Whalen, P.J., Smith, Centra,Peradotto and Scudder, JJ.